The European Commission has quietly resolved two of its most consequential Digital Markets Act enforcement cases through private negotiations with the gatekeepers themselves. In late August 2026, Apple announced changes to its app distribution terms in the European Union, describing them as the product of "close collaboration" with the Commission. A few months earlier, Meta reached a similar accommodation over its advertising model. In neither case has the Commission published a formal decision explaining how it reconciled its earlier findings of non-compliance with the outcomes it ultimately accepted.
A pattern of private settlements
The two cases share an uncomfortable feature. Both involve the Commission's non-compliance procedures under the Digital Markets Act, designed to compel gatekeepers to change specific business practices. Both ended not with a formal decision subject to judicial review, but with a press release and a corporate announcement. Alba Ribera Martínez, a researcher at VU Amsterdam who has followed both cases closely, argues that this amounts to a deliberate choice by the Commission to avoid accountability. The settlements determine how the DMA applies to business models affecting millions of users and thousands of developers, yet the reasoning behind them remains inaccessible.
The Commission's own prior rulings, by contrast, were detailed and publicly available. Its decision fining Meta for breaching Article 5(2) of the DMA ran through the legal deficiencies of the pay-or-consent model at length. Apple's non-compliance finding on steering, issued in April 2025, likewise set out specific reasons. The settlements that replaced those procedures have no comparable paper trail.
The Meta concession on advertising
In December 2025, the Commission announced that Meta would be permitted to offer users in the EU a choice of Facebook and Instagram services showing less personalised advertising. The Commission presented this as a win, noting it was the first time such an option had been offered on Meta's platforms. The underlying problem, however, was more nuanced than the press release suggested.
The Commission's own fining decision against Meta had found that the original subscription model failed on two cumulative conditions required by Article 5(2). First, the binary choice between paying or accepting personalised ads did not provide users with an equivalent, less personalised alternative. Second, the consent mechanism did not meet the standards of Articles 4(11) and 7 of the GDPR, because the power imbalance between Meta and its users made it impossible to determine that consent could be given freely, and because users who refused consent suffered detriment with no free-of-charge alternative available.
Meta's revised offer, adding a less personalised tier, addresses the second and third of those concerns. It does nothing to resolve the power imbalance that the Commission itself identified as grounds for invalidating consent under GDPR principles. Yet the Commission has not explained how it overcame that legal obstacle. Without a published decision, there is no way to assess whether the reasoning is sound, and no way for affected parties to challenge it.
Apple restructures its fees
Apple's announcement goes further, touching on two of the most disputed provisions in the DMA: the steering mandate under Article 5(4) and the alternative distribution requirement under Article 6(4). On steering, Apple confirmed it would eliminate the initial acquisition fee and store services fee it had been charging developers when users completed transactions outside the App Store. The Commission had found these fees non-compliant in April 2025, yet imposed no periodic penalties at the time. Apple's concession on this point is effectively belated compliance with a ruling it had already lost.
The more significant shift concerns alternative distribution. Under its previous compliance approach, Apple required each developer to choose between the old App Store terms, which charged a commission per transaction but offered no DMA-mandated freedoms, and new terms that imposed additional restrictions on distribution and payment processing. Apple has now unified its terms into a single set, meaning there is no longer a version of the iOS ecosystem in the EU where the DMA provisions are unavailable.
The detail matters. Apple is retiring its Core Technology Fee, a flat charge of 0.50 euro per first annual install, and replacing it with what it calls the Core Technology Commission: a 5% levy on digital transactions for apps distributed outside the App Store. Apple had signalled this shift a year earlier at its compliance workshop. For developers who stay within the App Store and use Apple's in-app purchase system, the commission rates have in some cases increased. Developers must also lock in their payment processing choice for a minimum of 12 months.
What Apple kept and what it conceded
Apple has dropped one contentious requirement: it will no longer apply its Notarization process to alternative app stores on iOS. But it will continue to require sideloaded apps to pass a baseline review that Apple controls. The company has argued that sideloading allows malicious actors to distribute harmful software via the web for extended periods before detection. Its own engineers, however, have reportedly compared the App Store's screening process to a butter knife in a gunfight, a characterisation that rather undermines the security justification for retaining control over alternative distribution.
The net effect is that Apple has reshuffled its fees and renamed them, while preserving a commission structure that still extracts revenue from transactions conducted entirely outside its infrastructure. Whether this satisfies Article 5(4)'s requirement that steering be enabled free of charge, or Article 6(4)'s mandate on alternative distribution, is a question the Commission has effectively answered in Apple's favour without publishing its reasoning.
The accountability deficit
The core problem is procedural, not merely substantive. When the Commission issues a formal non-compliance decision under the DMA, affected parties can challenge it before the General Court. When the Commission settles the same matter through private negotiation and announces the result in a press release, there is no decision to challenge. The legal interpretation that underpins the settlement remains invisible.
This matters because the DMA's enforcement framework was not designed to accommodate third-party participation in the first place. As scholars including Cseres and de Korte have pointed out, the regulation provides no formal mechanism for business users, competitors, or consumer groups to intervene in non-compliance procedures. The Commission's turn toward closed-door settlements compounds that structural gap. If the enforcer can negotiate away its own prior findings of illegality without publishing its reasoning, the accountability mechanisms built into the DMA become decorative.
What the Commission gave up
In Meta's case, the Commission accepted a revision that addresses some but not all of the deficiencies it had itself identified in its fining decision. The power imbalance between Meta and its users, which the Commission treated as grounds for invalidating consent under GDPR standards, remains unaddressed. In Apple's case, the Commission has accepted a fee restructuring that preserves Apple's ability to charge commissions on transactions it does not process, and to impose a 12-month lock-in on payment processing choices. A Commission spokesperson reportedly commended the Apple settlement.
Neither settlement comes with a formal decision. Neither sets out the Commission's legal reasoning. Neither can be appealed. The practical consequence is that the DMA's meaning in these two critical areas, advertising consent and alternative distribution, is being defined by private agreement rather than by the institutions and procedures the regulation established.
A question of legitimacy
Ribera Martínez argues that the Commission's approach undermines the legitimacy that EU institutions depend on. The DMA was enacted through the ordinary legislative procedure, with input from the Parliament, the Council, and a wide range of stakeholders. Its enforcement, however, is being carried out through a mechanism, bilateral negotiation with no published reasoning, that bypasses every one of those checks. The Commission may consider this efficient. It is certainly faster than litigating a non-compliance decision through the courts. But efficiency and accountability are not the same thing, and the DMA's credibility depends on both.
There is an alternative, even within the current framework. The Commission could publish its reasoning. It could open a public consultation on what fairness means under Article 6(4), as Ribera Martínez suggests. It could at minimum ensure that its settlements are accompanied by decisions that set out the legal interpretation applied, so that the General Court can perform its review function. None of this would prevent the Commission from negotiating. It would simply require it to explain what it has negotiated and why.
People mentioned
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Alba Ribera Martínez
Organisations
European Commission · Apple · Meta · General Court of the European Union
